Over-lawyered in the war on terrorism

Ruth Marcus uses the occasion of “Law Day” to launch a misleading and surprisingly superficial attack on President Bush. Marcus focuses on the Bush administration’s policy with respect to terrorists detained at Guantanamo Bay. She thinks they should have more rights than the president and the Congress want to grant them.
That’s not an irrational view, but it’s disappointing to see Marcus indulge in the equivalent of name-calling towards those who don’t share it. Moreover, Marcus declines to inform her readers that a great many of those who have passed through Gitmo ultimately were released (and some apparently returned to the battlefield). The process they received evidently was sufficient for them to avoid indefinite detention. And, of course, any process that a detainee receives exceeds that available to prisioners of war. Marcus fails to explain why the current, less respectable crew — those we have reason to believe have taken up arms against us outside the rules of war — should receive extra process.
Marcus cites the fact that the Supreme Court has rejected a few of the administration’s positions regarding to the treatment of detainees. But surely she understands that a president does not act lawlessly by virtue of taking a position with which a majority of the Supreme Court eventually disagrees. A president acts lawlessly when he refuses to abide by a final court ruling. This President Bush has not done.
Marcus is unhappy that some government officials have criticized lawyers who represent detainees. The main criticism appears to be that their visits to Gitmo represent a disruptive influence. Whether they do or don’t is an empirical question that I’m not in a position to assess; nor, I suspect, is Marcus.
In any case, I’m not critical of lawyers who choose to defend terrorist suspects. It’s not something I would do for any amount of money, but I respect those who see things differently. I do wonder, though, about the reflex that causes those who do not represent these folks to believe that individuals we capture on the battlefield have a right to burden our legal system with challenges that force us to litigate their status. This unprecedented notion is, I think, the product of an over-lawyered society presided over by lawyers who have become judges and who are far too inclined to exalt their stock-in-trade — legal process — over legitimate competing concerns.
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